submitted for the prisoner, and of course left no ground for objection. We cannot conceive how the jury were misled by the failure of the court to state, in terms, that the pins used in the manner described by the witnesses would be deadly weapons, or by the general instruction that the unlawful killing, if done, would, in this case, have raised a presumption of malice, since the jury were explicitly made to understand that the prisoner was not guilty of any offense, unless the death of the infant was caused by her pushing the pins into its mouth. So it was impossible, under the instructions given and upon the evidence, to find that there was an unlawful killing, unless it was effected by such use by her of the pin or pins. "By our decisions," said the court in State v. Vann, 82 N. C. 631, "matters of extenuation and excuse, or discharge by reason of insanity, must be shown by him who sets it up." The prisoner offered no testimony tending to show insanity, and the presumption in favor of sanity was therefore unrebutted. We concur with the judge below in the view that there was no aspect of the evidence in which the offense of killing, if done by the prisoner in the manner described by the witnesses (and so it must have been done if at all) could be mitigated to manslaughter. It is possible that in such a case there might have been testimony tending to show that the killing was done by putting pins into the mouth of an infant carelessly, not purposely, and, if any such evidence had been offered, it would have been proper to have submitted to the jury, with suitable instructions, the question whether the mitigating circumstances relied on were proved. 794 After considering the carefully prepared arguments of counsel upon the assignments of error, we feel constrained to hold that the judgment should be affirmed. Affirmed. DEADLY WEAPON-WHAT IS. -A "deadly weapon" is not exclusively one designed to take life or inflict bodily injury, and when not of this char. acter the question is one of fact: Blige v. State, 20 Fla. 742; 51 Am. Rep. 628, and note. A dangerous weapon is one capable of producing death or great bodily harm: State v. Godfrey, 17 Or. 300; 11 Am. St. Rep, 830, and note. HOMICIDE-PRESUMPTION OF MALICE FROM USE OF DEADLY WEAPON.— The existence of the formed design necessary to constitute the crime of murder is presumed from the intentional use of a deadly weapon with a fatal result: Handley v. State, 96 Ala. 48; 38 Am. St. Rep. 81. The inflic tion of a mortal wound with a deadly weapon or an instrument likely to cause death raises a presumption of malice which must be rebutted by the accused in order to reduce the killing to a grade of homicide lower than that of murder: Note to Lewis v. State, 38 Am. St. Rep. 81. INSANITY-PRESUMPTION AS TO.-The presumption that a person accused of crime is sane prevails until the contrary is shown: Commonwealth v. Gerade, 145 Pa. St. 289; 27 Am. St. Rep. 689, and note. STATE V. HALL. [115 NORTH CAROLINA, 811] FUGITIVE FROM JUSTICE-WHO IS NOT.-A person cannot, in any sense, be deemed to have fled from the justice of a state in the domain of whose terminal jurisdiction he has never been corporally present since the commission of a crime therein. One who has never fled cannot be a fugitive from the justice of a state in which he is only constructively present at the time he commits a crime. FUGITIVE FROM JUSTICE IS ONE WHO having committed a crime in one jurisdiction goes into another to evade the law and escape punish ment. EXTRADITION-FUGITIVE FROM JUSTICE.-ONE WHO IS ONLY CONSTRUCTIVELY PRESENT in one state at the time he stands in another state and fires a gun, the bullet from which kills a person in the former state, into whose limits he has never gone since the commission of the crime, is not, in the absence of express statute, a fugitive from the justice of that state, and is not liable to extradition, and, if arrested under a warrant of extradition in another state, he is entitled to be discharged upon habeas corpus. CONSTITUTIONAL LAW-EXTRADITION.-The state may, in the exercise of its reserved sovereign powers, and as an act of comity to a sister state, provide by statute for the surrender, upon requisition, of persons who are indictable for a crime committed through their constructive presence in such sister state, though they have never been corporally within such state and have never fled therefrom to escape arrest and punishment. But, in the absence of such statute, such persons are not subject to extradition by the latter state. THE defendants Hall and Dockery, while in the state of North Carolina, killed one Bryson, who was then over the state line in Tennessee. The defendants were indicted in North Carolina for the murder, and finally discharged for want of jurisdiction, as the offense was deemed to have been committed in Tennessee. They were citizens of North Carolina and remained in that state, and it was afterward Bought by extradition proceedings to take them to Tennessee for the purpose of prosecuting for the said offense. They were arrested and placed in jail awaiting the warrant of extradition, and sought to be dischaged from custody under a writ of habeas corpus sued out in their behalf. On the hearing before the court below the judge thereof refused to discharge them, and they appealed. G. S. Ferguson, for the petitioners. 813 AVERY, J. The defendants were arrested, and are now held under the statute (Code, sec. 1165), which provides that any one of certain judicial officers therein named, "on sat isfactory information laid before him that any fugitive in the state has committed, out of the state and within the United States, any offense which by the law of the state in which the offense was committed is punishable, either capitally or by imprisonment for one year or upwards in any state prison, shall have full power and authority, and is hereby required, to issue a warrant for said fugitive, and commit him to jail within the state for the space of six months, unless sooner demanded by the authorities of the state wherein the offense may have been committed, pursuant to the act of Congress in that case made and provided," etc. It is manifest that the prisoners cannot be lawfully detained, under the unmistakable language of the law, unless it has been made to appear that they are liable to extradition under the act of Congress, passed in pursuance of article 4, section 2, clause 2, of the constitution of the United States, in order to provide for the surrender of persons 814 charged with criminal offenses "who shall flee from justice and be found in anothor state." The prisoners were tried for murder in Cherokee county, and, upon appeal, it was held (State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822), that if the deceased, at the time of receiving the fatal injury, was in the state of Tennessee, and the prisoners were in the state of North Carolina, the courts of the former commonwealth alone had jurisdiction of the offense. The prisoners, if such were the facts, were deemed by the law to have accompanied the deadly missile sent by them across the border, and to have been constructively present when the fatal wound was actually inflicted. As our statute confers no power to detain in custody, or to surrender at the demand of the executive of another state any person who does not fall within the definition of a fugitive from justice according to the interpretation given by the courts of the United States to the clause of the federal constitution providing for interstate extradition, and the act of Congress passed in pursuance of it, the only question before us is, whether a person can, in contemplation of law, "flee from justice" in the state of Tennessee when he has never been actually, but only constructively, within its territorial limits. Upon this question there is abundant authority, emanating not only from the foremost text-writers and some of the ablest jurists of the most respectable state courts, but from the supreme court of the United States, whose peculiar province it is to declare what interpretation shall be given to the federal constitution and the statutes enacted by Congress in pursuance of its provisions, which are declared by that instrument to be the supreme law of the land. If we can surrender under our statute only fugitives within the meaning of the act of Congress it would seem sufficient to cite Ex parte Reggel, 114 U. S. 642, where it is held that a person arrested as a fugitive has a right "to insist upon proof that he was within the demanding state at the time he is alleged to have committed the 815 crime charged, and consequently withdrew from her jurisdiction so that he could not be reached by her criminal process." It is admitted that the prisoners have never withdrawn from the jurisdiction of the courts of Tennessee, and have never been, either at the time when the homicide was committed, or since, exposed to arrest under process issuing from them. But in a case involving so important a principle, and calculated to excite general interest on the part, especially, of the legal profession, we feel warranted in not only citing but quoting from other authorities. Where a person is charged with cheating by false pretenses, by means of a misrepresentation in writing, sent to another state, whereby he procures something of value in the state to which such writing goes, he is deemed to be constructively present where the false pretense is successfully used, and where the money or property is obtained, and is consequently liable to be indicted. and punished there, if he comes within the reach of the process of its courts: People v. Adams, 3 Denio, 190; 45 Am. Dec. 468. But the supreme court of Alabama, in a case exactly in point (In re Mohr, 73 Ala. 503, 49 Am. Rep. 63), state the principle applicable here with great clearness and force. The defendant was charged with cheating, by false pretenses, a prosecutor in the state of Pennsylvania, though it was admitted that he had never actually gone within the limits of that state. The court said: "It is clear to our minds that crimes which are not actually, but are only constructively committed within the jurisdiction of the demanding state, do not fall within the class of cases intended to be embraced by the constitution or act of Congress. Such, at least, is the rule, unless the criminal afterward goes into such state and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The reason is, not that the jurisdiction to try the crime is lacking, but that no one can, in any sense, be alleged to have fled the state in the domain of whose territorial 816 jurisdiction he has never been cor porally present since the commission of the crime." That court cited, to sustain this view, among other authorities: Wharton's Criminal Pleading, 8th ed., 231; Kingsbury's case, 106 Mass. 223; Ex parte Smith, 3 McLean, 121, and Wilcox v. Nolze, 34 Ohio St. 520. Bouvier's Law Dictionary, 551, defines a fugitive from justice as "one, who having committed a crime within one jurisdiction, goes into another in order to evade the law and avoid punishment." The same writer says also that the executive of a state cannot be called upon to deliver up a person charged with a criminal offense in another state, unless it appear that such person "is a fugitive from justice." Rapalje's Law Dictionary, 555, defines a fugitive from justice as "one, who having committed a crime in one jurisdiction, flees therefrom into another jurisdiction in order to escape punishment": See, also, 1 Abbott's Law Dictionary, 508, for definition of "fleeing." To hold that a person, who is liable to indictment only by reason of his constructive presence, is a fugitive from the justice of a state within whose limits he has never gone since the commission of the offense, involves as great an error as to maintain that one who has stood still and never ventured within the reach of another, has fled from him to avoid injury. One who has never fled cannot be a fugitive: Jones v. Leonard, 50 Iowa, 106; 32 Am. Rep. 116; 7 Am. & Eng. Ency. of Law, 646, and note 1, 647. Moore in his work on Extradition, volume 2, section 582 et seq., after quoting the extract already given from Reggel's case, cites a number of other cases wherein governors of states, under well-considered opinions of their legal advisers, have recognized and acted upon the principle that a person cannot be said to flee from a place where he has never actually been, but to which, |